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Patrick H., Lawyer

Category: Australia Law

Satisfied Customers: 4672

Experience: Dip Law LPAB - Sydney based lawyer

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I and my previous wife divorced in February 2004,no property

Resolved Question:

I and my previous wife divorced in February 2004,no property settlement ever took place the Bank repocessed our home and sold it.I remarried in late 2004 and I am now intending to retire,can my previous wife make any claim on my Superannuation payout?

In principle there is a limitation period of 1 year from the date of divorce for a party to a marriage to apply for property orders (including a claim for a share of superannuation), after which the court has to agree to extend the limitation period.

In practice, the courts will usually extend the limitation period if there are significant assets involved and substantial injustice would occur if the court refused to extend the limitation period.

The court's inclination to extend the period, however, will decline over time and especially if there is no satisfactory reason for the delay. As it appears your wife is now almost 8 years late, the court is unlikely to grant such an extenion unless it could be shown that not doing so would be grossly unfair having regard to your respective situations. So if it appears your wife is presently living comfortably, and it appears to the court that your wife would only be a few tens of thousands of dollars out of pocket due to the lack of a proper settlement back in 2005, then the court would be unlikely to allow her to now revisit the issue. On the other hand, if she is living in squalor and has missed out on a half million share in your assets, then the court may still be willing to allow her late application. For in between cases it can be difficult to predict whether a court would allow a late application, and it may well depend on her explanation for not acting sooner.

I trust the above assists your understanding.

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